Citation Nr: 0619491
Decision Date: 07/05/06 Archive Date: 07/13/06
DOCKET NO. 04-02 358 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to a rating in excess of 10 percent for left
foot overuse syndrome with degenerative joint disease.
2. Entitlement to a rating in excess of 10 percent for
chronic low back pain/strain.
ATTORNEY FOR THE BOARD
M. Vavrina, Counsel
INTRODUCTION
The veteran served on active duty from February 1994 to
December 1995.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a June 2001 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office in St.
Petersburg, Florida (St. Petersburg RO). During the pendency
of this appeal, in a December 2005 rating decision, the RO
assigned separate 10 percent ratings for the veteran's
bilateral knee disabilities. The same month, the veteran
withdrew her appeal with regard to these disabilities; thus
these issues are no longer on appeal. 38 C.F.R. § 20.204
(2005).
The veteran failed to appear for a Central Office (CO)
hearing scheduled in May 2005; therefore, her request for a
hearing is deemed withdrawn. 38 C.F.R. § 20.704 (2005).
On a VA Form 9 dated December 10, 2003, the veteran indicated
that the pain from both her left foot and back prevents her
from working. This statement appears to be a claim of
entitlement to a total disability rating based on individual
unemployability due to service-connected disabilities (TDIU),
and is referred to the RO for appropriate action.
FINDINGS OF FACT
1. The veteran's left foot disability is manifested by pain
and degenerative joint disease and subjective complaints of
numbness; it is does not approximate a moderately severe foot
injury.
2. The veteran's lumbar spine disability is manifested by no
more than slight range of motion and lumbosacral strain with
characteristic pain on motion; the veteran has not been
diagnosed with arthritis or intervertebral disc syndrome
(IDS).
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 10 percent for
left foot overuse syndrome with degenerative joint disease
have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107
(West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 4.71a,
Diagnostic Code 5284 (2005).
2. The criteria for a rating in excess of 10 percent for
chronic low back pain/strain have not been met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2006);
38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (2003);
38 C.F.R. §§ 3.102, 3.159, 4.1-4.10, 4.71a, Diagnostic Codes
5237, 5242 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103
and 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2005).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2005);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). VA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
The Board finds that the evidence of record -- service and
post-service medical records and examination reports, and lay
statements -- is adequate for determining whether the
criteria for higher ratings have been met for the veteran's
left foot and lumbar spine disabilities. Accordingly, the
Board finds that no further assistance to the veteran in
acquiring evidence is required by statute. 38 U.S.C.A.
§ 5103A.
In the present case, the Board acknowledges that the March
2001 VA notice letter informed the veteran of what was needed
to establish entitlement to service connection, instead of
entitlement to higher ratings. But VA corrected this
mistake; collectively, January 2004 and August 2005 letters
satisfied VA's notice requirements for elements (1), (2) and
(3) above with regard to the veteran's increased ratings
claims, but it is unclear from the record whether the
appellant was explicitly asked to provide "any evidence in
[her] possession that pertains" to her claims. See 38 C.F.R.
§ 3.159(b)(1). Nevertheless, as a practical matter the Board
finds that she has been notified of the need to provide such
evidence for the following reasons. The August 2005 letter
requested that she let VA know of any evidence that might
support her claims or, if she had any evidence in her
possession, to send it to VA. An October 2005 VA Form 119,
Report of Contact, reflects that the veteran had no
additional relevant evidence to submit in response to the
August 20055 notice letter. Under these circumstances, the
Board is satisfied that the appellant has been adequately
informed of the need to submit relevant evidence in his
possession.
During the pendency of this appeal, the United States Court
of Appeals for Veterans Claims (Court) issued a decision in
the consolidated appeal of Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006), which held that the VA's notice
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a service-connection
claim, including the degree of disability and the effective
date of an award. In the present appeal, the veteran was not
provided with notice of the type of evidence necessary to
establish an effective date, if a higher disability rating
was granted on appeal. In light of the fact that both
increased ratings claim have been denied, there can be no
possibility of any prejudice to the claimant under the
holding in Dingess/Hartman. The veteran has not alleged any
prejudice with respect to the timing of the notification, nor
has any been shown.
The Board finds that the purpose behind the notice
requirement has been satisfied because the appellant has been
afforded a meaningful opportunity to participate effectively
in the processing of her claims. She failed to appear for a
CO Board hearing. In light of the above, the Board finds
that there has been no prejudice to the appellant in this
case that would warrant further notice or development, her
procedural rights have not been abridged, and the Board will
proceed with appellate review. See Conway v. Principi, 353
F.3d 1369 (Fed. Cir. 2004); Sutton v. Brown, 9 Vet. App. 553
(1996); Bernard v. Brown, 4 Vet. App. 384 (1993).
Analysis
The veteran contends that her left foot and lumbar spine
disabilities are more severe than the current ratings
suggest.
Disability evaluations are determined by evaluating the
extent to which a veteran's service-connected disability
adversely affects the ability to function under the ordinary
conditions of daily life, including employment, by comparing
the symptomatology with the criteria set forth in the VA
Schedule for Rating Disabilities (Rating Schedule). 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10
(2005). Separate diagnostic codes identify the various
disabilities and the criteria for specific ratings. If two
evaluations are potentially applicable, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria required for that evaluation;
otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7 (2005). After careful consideration of the evidence,
any reasonable doubt remaining is resolved in favor of the
veteran. 38 C.F.R. § 4.3 (2005). Where service connection
has already been established and an increase in the
disability rating is at issue, it is the present level of
disability that is of primary concern. See Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).
In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held
that criteria which provide a rating on the basis of loss of
range of motion require consideration of 38 C.F.R. §§ 4.40
and 4.45 (regulations pertaining to functional loss of the
joints due to pain, etc.). Therefore, to the extent
possible, the degree of additional disability caused by
functional losses, such as pain, weakened movement, excess
fatigability, or incoordination, should be noted in terms
consistent with applicable rating criteria.
Under Diagnostic Code 5010, traumatic arthritis is evaluated
as degenerative arthritis under Diagnostic Code 5003.
Diagnostic Code 5003 provides that arthritis established by
x-ray findings will be rated on the basis of limitation of
motion under the appropriate diagnostic code for the specific
joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code
5003 (2005).
Left Foot Disability
In a July 1996 rating decision, the Nashville, Tennessee RO
(Nashville RO) granted service connection of overuse syndrome
of the left foot with degenerative joint disease and assigned
an initial 10 percent rating, which has remained unchanged
since then. This decision was based on Medical Board
Proceedings that showed a history of trauma to the left foot
in March 1994, thought to have been a stress fracture of the
foot, for which treatment included casting but the pain
continued with little resolution. An August 1994 bone scan
revealed degenerative joint disease.
The VA has rated the veteran's left foot disorder under
38 C.F.R. § 4.71a, Diagnostic Code 5284, for rating other
foot injuries. Under this diagnostic code, a 10 percent
evaluation is warranted for a moderate foot injury, a 20
percent evaluation is assigned for moderately severe foot
injury, and a maximum 30 percent evaluation is assigned for a
severe foot injury. See 38 C.F.R. § 4.71a, Diagnostic Code
5284 (2005). With actual loss of use of the foot, a 40
percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic
Code 5167 (2005).
Based on a review of the evidence, the Board finds that the
preponderance of the evidence shows that the veteran's left
foot disability does not even approximate a moderate foot
injury, which would warrant a 10 percent rating. This is so
because, although there is x-ray evidence of degenerative
arthritis, there is no limitation in motion to warrant a
compensable, 10 percent rating, under Diagnostic Code 5003.
VA treatment records show that the veteran was treated with
orthotics for plantar fasciitis in April 2001, in order to
alleviate both heel pain and shin splints. In June 2002, she
was seen for foot pain. The examiner noted that there was
minimal callous build up at weight bearing areas and she had
not been wearing her orthotics. In December 2002, the
veteran was seen for left ankle and foot pain and complaints
of numbness over the anterior left foot. On examination,
sensory testing was grossly intact and reflexes were entirely
intact. There was no evidence of edema or tenderness and the
examiner noted that her feet were within normal limits. In
December 2005, the veteran was given Motrin for complaints of
ankle pain. Examination had revealed no edema and sensory
was grossly intact.
At a May 2001 VA examination, there was no limitation of
motion found on examination. Ankle range of motion was
plantar flexion to 45 degrees and dorsiflexion to 20 degrees.
The feet and ankles showed no pinpoint tenderness. The
examiner could find no evidence of residuals of the 1994
foot/ankle injury. Similar findings were reported on VA
examination in November 2005. No weakness or fatigability of
her left foot was found, but she complained of achiness over
the dorsum of her talus only. No gross obvious pathology was
found on clinical or radiological evaluation. Her range of
motion of the metatarsophalangeal and interphalangeal joints
were all normal.
As noted above, when evaluating disabilities of the
musculoskeletal system, 38 C.F.R. § 4.40 allows for
consideration of functional loss due to pain and weakness
causing additional disability beyond that reflected on range
of motion. Where, as here, a diagnostic code is not
predicated on a limited range of motion alone, such as with
Diagnostic Code 5284, the provisions of 38 C.F.R. §§ 4.40 and
4.45 with respect to pain do not apply. See Johnson v.
Brown, 9. Vet. App. 7, 11 (1996). The medical evidence of
record does not show functional loss based on weakness,
fatigability, and incoordination. Since the veteran's left
foot disability is manifested by pain and degenerative joint
disease and subjective complaints of numbness but with full
range of motion; the Board finds that it is does not
approximate a moderately severe foot injury, and as such does
not warrant a 20 percent rating.
The Board has considered other diagnostic codes for rating
disabilities of the foot, but they are not applicable here as
the clinical findings do not reflect that the veteran has pes
planus, a weak foot, pes cavus, Morton's disease, hallux
valgus, hallux rigidus, hammer toes, or malunion or nonunion
of the metatarsal bones to warrant a rating under 38 C.F.R.
§ 4.71a, Diagnostic Codes, 5276, 5277, 5278, 5279, 5280,
5281, 5282 or 5283 (2005).
Lumbar Spine Disability
In a July 1996 rating decision, the Nashville RO granted
service connection of chronic low back pain and assigned an
initial noncompensable percent rating. This decision was
based on Medical Board Proceedings that showed a diagnosis of
chronic low back pain medically acceptable. In a December
1998 rating decision, the St. Petersburg RO recharacterized
her lumbar spine disability as chronic low back pain/strain
and assigned a 10 percent, which has remained unchanged since
then.
The Board observes that the criteria relating to spinal
disorders were amended several times since the date of
receipt of the veteran's claim in March 2001 and the most
favorable one must be applied. See 67 Fed. Reg. 48,785 (July
26, 2002), 67 Fed. Reg. 54,345-49 (Aug. 22, 2002); 68 Fed.
Reg. 51,454-58 (Aug. 27, 2003; 69 Fed. Reg. 32,449 (June 10,
2004) (codified at 38 C.F.R. § 4.71a (2005)); see also
VAOPGCPREC 3-2000.
The veteran's lumbar spine disability has been rated by VA
under Diagnostic Codes 5295 and 5237, for lumbosacral strain.
See 38 C.F.R. § 4.71a (2003, 2005). The Board has also
considered rating it for limitation of motion under
Diagnostic Code 5292, degenerative arthritis under Diagnostic
Code 5243, and as IDS under Diagnostic Codes 5293 and 5243.
See 38 C.F.R. § 4.71a (2002, 2003, 2005). Since the veteran
has not been diagnosed with either degenerative arthritis or
IDS of the lumbar spine, Diagnostic Codes 5243, 5293, and
5243 are inapplicable.
Before September 26, 2003, when there was severe lumbosacral
strain, with listing of the whole spine to the opposite side,
positive Goldthwaite's sign, marked limitation of forward
bending in a standing position, loss of lateral motion with
osteo-arthritic changes, or narrowing or irregularity of
joint space, or some of the above with abnormal mobility on
forced motion, a 40 percent rating, the maximum under the
rating criteria for this diagnostic code, was warranted,
under former Diagnostic Code 5295. A 20 percent rating was
warranted for lumbosacral strain with muscle spasm on extreme
forward bending, loss of lateral spine motion, unilateral, in
standing position. A 10 percent rating was warranted for
lumbosacral strain with characteristic pain on motion. See
38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003). Before
September 26, 2003, the Rating Schedule, included criteria
for rating limitation of motion of the lumbar spine under
Diagnostic Code 5292. Under that diagnostic code, a 10
percent rating was warranted for slight limitation of motion,
a 20 percent rating was warranted for moderate, and a maximum
40 percent rating for severe limitation of motion. See 38
C.F.R. § 4.71a, Diagnostic Code 5292 (2003).
Under the revised spine rating criteria effective September
26, 2003, Diagnostic Codes 5237 for lumbosacral strain and
5242 for degenerative arthritis of the spine, with or
without symptoms such as pain (whether or not it radiates),
stiffness, or aching in the area of the spine affected by
residuals of injury or disease: unfavorable ankylosis of the
entire spine warrants a maximum 100 percent rating; while
unfavorable ankylosis of the entire thoracolumbar spine is
given a 50 percent rating. Forward flexion of the
thoracolumbar spine of 30 degrees or less; or, favorable
ankylosis of the entire thoracolumbar spine warrants a 40
percent rating. Forward flexion of the thoracolumbar spine
greater than 30 degrees but not greater than 60 degrees; or,
the combined range of motion of the thoracolumbar spine not
greater than 120 degrees; or, muscle spasm or guarding
severe enough to result in an abnormal gait or abnormal
spinal contour such as scoliosis, reversed lordosis, or
abnormal kyphosis warrants a 20 percent rating. Forward
flexion of the thoracolumbar spine greater than 60 degrees
but not greater than 85 degrees, or, the combined range of
motion of the thoracolumbar spine not greater than 120
degrees, or, muscle spasm, guarding, or localized tenderness
not resulting in abnormal gait or abnormal spinal contour,
or, vertebral body fracture with loss of 50 percent or more
of the height warrants a 10 percent rating.
Normal forward flexion of the thoracolumbar spine is 0 to 90
degrees, extension is 0 to 30 degrees, left and right
lateral flexion are 0 to 30 degrees, and left and right
lateral rotation are 0 to 30 degrees. The combined range of
motion refers to the sum of the range of forward flexion,
extension, left and right lateral flexion, and left and
right rotation. The normal combined range of motion of the
thoracolumbar spine is 240 degrees.
For VA compensation purposes, unfavorable ankylosis is a
condition in which the entire cervical spine, the entire
thoracolumbar spine, or the entire spine is fixed in flexion
or extension, and the ankylosis results in one or more of
the following: difficulty walking because of a limited line
of vision; restricted opening of the mouth and chewing;
breathing limited to diaphragmatic respiration;
gastrointestinal symptoms due to pressure of the costal
margin on the abdomen; dyspnea or dysphagia; atlantoaxial or
cervical subluxation or dislocation; or neurologic symptoms
due to nerve root stretching. Fixation of a spinal segment
in neutral position (zero degrees) always represents
favorable ankylosis. See 68 Fed. Reg. 51,454-58 (Aug. 27,
2003) (codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5237
and 5242 (2005)).
As to the neurological component, under 38 C.F.R. § 4.124a,
Diagnostic Code 8520 (2005), for rating sciatic neuropathy, a
10 percent rating is warranted when the impairment is mild,
20 percent when moderate, 40 percent when moderately severe,
60 percent when severe with marked atrophy, and 80 percent
when there is complete paralysis when the foot dangles and
drops, no active movement is possible of muscle below the
knee, flexion of the knee is weakened or (very rarely) lost.
Reviewing the evidence of record, under the revised spinal
disorders rating criteria delineated in Diagnostic Code 5237
effective in September 2003, the veteran has not been shown,
at any time during the pendency of this appeal, to have
favorable or unfavorable ankylosis of either the entire
thoracolumbar or the entire spine, that is, ankylosis
resulting in one or more of the following: difficulty
walking because of a limited line of vision; restricted
opening of the mouth and chewing; breathing limited to
diaphragmatic respiration; gastrointestinal symptoms due to
pressure of the costal margin on the abdomen; dyspnea or
dysphagia; atlantoaxial or cervical subluxation or
dislocation; or neurologic symptoms due to nerve root
stretching, to warrant either a 40, 50, or 100 percent
rating. Moreover, the veteran has not been shown to have
forward flexion of the thoracolumbar spine of 85 degrees or
less, or combined range of motion of the thoracolumbar spine
not greater than 120 degrees to warrant a 10, 20, 30, or 40
percent rating. Moreover, under the former spinal disorders
rating criteria under Diagnostic Codes 5292 and 5295, the
preponderance of the evidence failed to show that the
veteran's lumbar spine disability was characterized by
moderate or severe limitation of motion, severe lumbosacral
strain, or lumbosacral strain with muscle spasm on extreme
forward bending, loss of lateral spine motion, unilateral, in
standing position to warrant a 20 or 40 percent rating under
Diagnostic Codes 5292 and 5295.
Even with consideration of 38 C.F.R. §§ 4,40, 4.45, and 4.59,
the preponderance of the evidence shows that the veteran's
lumbar spine disability approximates no more than slight
range of motion or lumbosacral strain with characteristic
pain on motion, warranting no more than a 10 percent rating.
This is so, because outpatient treatment records generally
reflect that the veteran has been treated for back pain
without radiculopathy, which was treated with Motrin or like
medications. There is no indication that veteran has been
treated with steroid injections or uses either a back brace
or TENS unit. At a May 2001 VA examination, no areas of
tenderness were noted. The veteran was able to bend down and
touch her toes without difficulty. Her backward extension
was to 35 degrees and side-to-side motion was at least to 35
degrees. The examiner stated that there was no evidence of
limitation of motion of the back. Lumbar spine x-rays were
normal. A November 2005 VA examination report and its
December 2005 addendum revealed range of motion of the
thoracolumbar spine of forward flexion to 90 degrees and
extension, bilateral bending and rotation to 30 degrees,
each, for a combined range of motion of 240 degrees. At that
time, the veteran complained of intermittent low back pain
without neural radiculopathy or sensory motor abnormality.
She was ambulatory and used no assistive devises. Deep
tendon reflexes were equal bilaterally and symmetric. There
was no additional limitation of motion with repetitive use or
fatigue or with flare-ups. She had not been hospitalized.
There was no obvious tenderness or spasm in the lumbosacral
areas. Motor testing was all intact. X-rays were normal.
No objective neurological findings were evident to warrant a
rating under 38 C.F.R. § 4.124a, Diagnostic Code 8520.
As the preponderance of the evidence is against the veteran's
claim for higher evaluations, the benefit-of-the-doubt
doctrine does not apply; therefore, the claim for higher
evaluations must be denied. Gilbert, 1 Vet. App at 55-57.
In reaching this decision the Board considered the issue of
whether the veteran's service-connected left foot and lumbar
spine disabilities, alone or together, present an exceptional
or unusual disability picture, so as to render impractical
the application of the regular schedular standards. See
38 C.F.R. § 3.321(b)(1) (2005). The Board notes that the
veteran is unemployed and she has alleged that her pain makes
her unemployable, but there is no medical evidence to that
effect since the only treatment appears to be with Motrin or
other over-the-counter pain medications. There is no
evidence of hospitalization for left foot or low back pain.
Without more, the Board concludes that there is no evidence
of record that the veteran's service-connected left foot and
lumbar spine disabilities cause marked interference with
employment, or necessitate frequent periods of
hospitalization, as to render impractical the application of
the regular schedular standards. The regular schedular
standards and the compensable ratings currently assigned,
adequately compensate the veteran for any adverse impact
caused by her service-connected spine disability. In light
of the foregoing, the Board finds that the criteria for
submission for assignment of an extraschedular rating under
38 C.F.R. § 3.321(b)(1) are not met.
ORDER
A rating in excess of 10 percent for left foot overuse
syndrome with degenerative joint disease is denied.
A rating in excess of 10 percent for chronic low back
pain/strain is denied.
____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs